Strike 3 Holdings, LLC v. Doe
- James Oetken
- 1:21-cv-01841
- U.S. District Court · Southern District of New York
- 4
In Strike 3 Holdings v. Doe, Judge Oetken allowed limited expedited discovery from Verizon Fios, with privacy protections for the unidentified defendant.
Strike 3 Holdings may seek Doe’s identifying information from Verizon Fios. John Doe receives notice and 60 days to challenge the subpoena or request anonymous litigation, while Verizon Fios must preserve the information and withhold it during that period.
What happened
Strike 3 Holdings, LLC accused an unidentified defendant, called John Doe, of distributing its copyrighted movies and asked to obtain Doe’s identity from Verizon Fios, the internet service provider. The movies allegedly contained pornographic material.
The court found good cause for immediate discovery because Strike 3 could not identify or serve Doe without a subpoena. But it also found that the proposed order did not adequately protect Doe, because the internet account holder might not be the person who allegedly shared the movies and the subject matter could create pressure to settle.
Judge Oetken allowed Strike 3 to subpoena Doe’s name and addresses, but required Verizon Fios to notify Doe and withhold the information for 60 days. Doe or Verizon could challenge the subpoena during that period, and the Clerk was directed to close the discovery motion.
The detailed version
- Strike 3 Holdings, LLC v. Doe · No. 1:21-cv-01841
- James Oetken
- Mar. 10, 2021
Background
Strike 3 Holdings, LLC alleged that an unidentified defendant, John Doe, distributed Strike 3’s copyrighted movies in violation of the Copyright Act. The movies contained pornographic material. Strike 3 asked for permission to take expedited discovery—information obtained before the usual discovery schedule—from Verizon Fios to learn Doe’s name and address.
Court’s Analysis
The court found good cause for some expedited discovery. Without a court-ordered subpoena, Verizon Fios was effectively barred from disclosing Doe’s identity under 47 U.S.C. § 551(c), because the court determined that Verizon Fios qualified as a cable operator under 47 U.S.C. § 522(5).
The court nevertheless found that Strike 3’s proposed order did not adequately protect Doe. The court explained that the person who subscribed to an internet connection might not be the person who allegedly infringed the copyright; another person with access to the connection, such as a child, neighbor, or houseguest, might have been responsible. The court also recognized a risk that the sensitive subject matter could lead an incorrectly identified defendant to face embarrassment or pressure to settle an unsupported claim.
Order
The court allowed Strike 3 to conduct immediate discovery from Verizon Fios through a subpoena under Federal Rule of Civil Procedure 45. The subpoena must seek Doe’s name and current and permanent address and must include a copy of the order.
Strike 3 must immediately serve the order on Verizon Fios, and Verizon Fios must serve it on Doe by a reasonable method, including first-class or overnight mail to Doe’s last known address. Doe has 60 days after service to file motions challenging the subpoena, including a motion to cancel or modify it, or to request permission to litigate anonymously. Verizon Fios may not disclose Doe’s identifying information before that 60-day period ends.
If Doe or Verizon Fios files a motion challenging the subpoena, Verizon Fios may not disclose the information until the court resolves the issue and orders Verizon Fios to resume production. If no challenge is filed within 60 days, Verizon Fios has 10 days to provide the subpoenaed information. Verizon Fios must preserve the information while any timely challenge is pending. Any information disclosed may be used by Strike 3 only to protect the rights described in its complaint. The Clerk was directed to close Docket No. 6. The order did not decide whether Doe infringed Strike 3’s copyrights. Judge Oetken entered the order on March 10, 2021.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.